420 F.

2d 858

SONNENBLICK-GOLDMAN CORP.
v.
Thomas NOWALK, Appellant.
No. 17797.

United States Court of Appeals Third Circuit.

Argued Oct. 3, 1969.
Decided Jan. 15, 1970.

Robert E. Wayman, Wayman, Irvin, Trushel & McAuely, Pittsburgh, Pa.,

for appellant.
Gerald S. Lesher, Baskin, Boreman, Sachs, Gondelman & Craig,
Pittsburgh, Pa., for appellee.
Before STALEY, SEITZ and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
STALEY, Circuit Judge.

On October 30, 1968, the district court issued an order granting plaintiff's
(appellee here) motion for summary judgment in this diversity civil action. The
Clerk entered this judgment on the docket on October 31, 1968, and notices
were mailed to the parties. Defendant-appellant's notice of appeal was filed in
the district court February 12, 1969. Rule 4(a), F.R.App.P., allows thirty days
from entry of the judgment for an appeal. Since greater than thirty days had
elapsed, this appeal, at least on the surface, is untimely and thus subject to
dismissal.

Defendant Nowalk, in an effort to overcome this defect, relies on a motion filed

in the district court subsequent to the entry of judgment.1 The motion requested
the court to vacate its order of summary judgment and enter an order for
rehearing and reconsideration. This motion was filed on November 13, 1968.
The district court in a memorandum and order entered January 31, 1969, denied
the motion as untimely. Nowalk's notice of appeal of February 12, 1969, is

within the appeal period from this last order of the district court.
3

Certain motions do toll the thirty-day time limit for taking an appeal. Such a
motion must satisfy two criteria. It must be one of the list of motions
specifically enumerated in Rule 4(a), F.R.App.P., and it must be timely.

There is no question that Nowalk's motion satisfied the first requirement. His
motion asked that the judgment be vacated and that the court grant rehearing
and reconsideration. As such, it was a motion to alter or amend a judgment
under Rule 59(e), F.R.Civ.P., Gainey v. Brotherhood of Ry. & S.S. Clerks, etc.,
303 F.2d 716 (C.A. 3, 1962). Such a motion is one enumerated in Rule 4(a). It
would, therefore, toll the running of the time for appeal, provided it was timely.

We note at this point that unless defendant's motion was timely, this court may
lack jurisdiction to hear it. It has been held that the thirty-day period for taking
an appeal is mandatory and jurisdictional, United States v. Robinson, 361 U.S.
220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Fitzsimmons v. Yeager, 391
F.2d 849, 853 (C.A.3), cert. denied, 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d
137 (1968); Raughley v. Pennsylvania R. Co., 230 F.2d 387 (C.A.3, 1956).2

If defendant's motion failed to toll the running of the time for appeal, the appeal
is late. Thus, the key issue is whether the motion was timely. Rule 59(e)
provides: 'A motion to alter or amend the judgment shall be served not later
than 10 days after entry of the judgment.' In order to determine if this appeal is
timely, defendant's motion must have been served within the time required.

Rule 6(a), F.R.Civ.P., directs the computation of time in these circumstances.

Since the day upon which the act occurred is not counted, October 31, 1968,
the date of entry of judgment, cannot be counted. Starting with November 1,
the ten-day period ends on November 10, 1968, which was a Sunday. Sundays
are not counted, and since the next day, November 11, 1968, was Veterans
Day, it likewise cannot be counted. Defendant then had until the end of
November 12, 1968, to serve the motion upon plaintiff.

As this court stated in Fast, Inc. v. Shaner, 181 F.2d 937 at 938 (C.A.3, 1950):
'* * * The primary responsibility rests upon the litigants to see to it that their
record is in proper form at all times.' See also Brest v. Philadelphia
Transportation Co., 273 F.2d 22 (C.A.3, 1959). In this case the record must
show that service of the motion was made on or before the end of November
12, 1968.

However, the record is barren of any indication when service was made. The
only fact that the record discloses is that service was made, but not precisely
when.3 While there is no agreement as to when service was accomplished, there
is agreement that it was not done on or before November 12, 1968.4 Since
defendant had only until the end of November 12 to serve the motion, it follows
that it was not timely. Thus the motion did not toll the running of the time
period for appeal. Since it had expired prior to filing the notice of appeal, this
appeal must be dismissed.5

10

Defendant urges that this result may be overcome by applying Rule 6(e),
F.R.Civ.P. This rule allows a party three additional days to act when a party is
served by mail. He asserts that since the Clerk notified the parties by mail of
entry of the judgment, he should have had three additional days within which to
serve the motion. Counting again from November 1, this would have allowed
service of the motion on November 13, 1968. Since that date could be inferred
as the date of service,6 the motion would have been timely and this appeal
would also be timely. We cannot accept this contention.

11

Prior decisions of this court appear to foreclose our consideration of this

question. Rule 6(b), F.R.Civ.P., has been determined to render a court without
power to extend the time for service of motions under former Rule 73(a),
F.R.Civ.P., and Rule 59(e), Steward v. Atlantic Refining Co., 235 F.2d 570
(C.A.3, 1956); Raughley v. Pennsylvania Railroad Co., supra. Rule 4(a),
F.R.App.P., supplanted Rule 73(a) without a change of substance.7 This leaves
these decisions undisturbed. In addition, while Rule 77(d), F.R.Civ.P., requires
the Clerk to notify the parties by mail of the entry of judgment, it states that the
lack of notice does not affect the time in which to appeal. Further, it appears
that filing of a motion such as defendant's is not conditioned upon notice of
entry of judgment. We conclude that Rule 6(e) has no application in this
situation and did not extend the time for service of the motion.

12

Defendant could, of course, have protected himself by filing a notice of appeal

with the district court after entry of summary judgment. If timely, the motion
would have served to render the notice of appeal a nullity since judgments with
motions of this type pending are considered not final and therefore not
appealable, Kelly v. Pennsylvania Railroad Co., 228 F.2d 727 (C.A.3, 1955),
cert. denied, 351 U.S. 925, 76 S.Ct. 782, 100 L.Ed. 1455 (1956); Healy v.
Pennsylvannia Railroad Co., 181 F.2d 934 (C.A.3, 1950). In situations such as
this, where the motion was not timely, the notice of appeal is effective, since
the time for appeal continues to run.

13

One final aspect of this case requires some clarification. Defendant's appeal

13

One final aspect of this case requires some clarification. Defendant's appeal
takes issue with both the order of the district court entering summary judgment
and the order denying his motion for rehearing and reconsideration. The order
denying the motion was entered January 31, 1969. This raises the possibility
that this court was called upon to review the propriety of the district court's
action in denying the motion. This, however, is not the case.

14

We have previously concluded that the motion was untimely. This court has
stated that any subtantive action a court takes on an untimely motion is a
nullity, Raughley v. Pennsylvania Railroad Co., supra.

15

The appeal will be dismissed.

At oral argument counsel for appellant-defendant was given additional time to

respond to plaintiff's contention that the appeal was untimely and subject to
dismissal. In his response, defendant offered the argument considered in the
text

For an interesting discussion of the jurisdictional aspects, see 9 J. Moore,

Federal Practice P204.02(2) (2d ed. 1969)

A handwritten notation appears on the cover of the motion, which reads as

follows:
'I hereby certify that a copy has been sent to plaintiff's counsel Lesher.
(Sgd.) Richard Jewell 11/13/68'
The foregoing statement is clearly insufficient to establish when service was
accomplished. The only fair inference which could be drawn from this record is
that service was made on November 13, 1968.

During the court's consideration of this case, counsel were asked to stipulate as
to the date upon which service was accomplished. This they failed to do.
Instead each submitted an affidavit. Defendant's counsel averred that service
was accomplished by mail on November 13, 1968. Plaintiff doubts that service
was by mail, but states that service was made on or after November 13, 1968.
Plaintiff appended to his affidavit a copy of defendant's letter of service. This
letter is dated November 13, 1968
While no stipulation was entered as to the date of service, they do agree that it
was not on or before November 12, 1968. This agreement is sufficient.

The present case is distinguishable from Thompson v. Immigration and

Natualization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964),
since there has been no reliance on any statement of the district court with
respect to the timeliness of the motion. Here, the district court denied the
motion as untimely

See nn. 3, 4, supra

See Notes of Advisory Committee on Appellate Rules. Rule 4, F.R.APP.P., 28

U.S.C.A